Arbitral tribunals are not allowed to refer to the CJEU for a preliminary ruling, but need the support of state courts in doing so. In most jurisdictions of the EU Member States, arbitral tribunals are rather limited in seeking such support. This may lead to difficulties as arbitral tribunals are nonetheless bound to (correctly) apply EU law and EU competition law in particular, a field of law which often arises in international arbitration. This is problematic as EU competition law, an essential feature of the internal market, requires that the EU Commission and state courts cooperate so that the uniform application of EU competition law is guaranteed. However, within the EU, only six Member States provide for an implicit possibility of asking state courts for assistance in referring to the CJEU, while none of the other Member States except Denmark provide for general court assistance to arbitral tribunals; Denmark expressly permits arbitral tribunals to request the competent state court to refer to the CJEU for a preliminary ruling. In light of the ever-growing importance of arbitration as means of dispute resolution, it must be asked why only a single EU Member State ensures the uniform application of EU competition law during arbitral proceedings.
Arbitral tribunal
Arbitral award
Arbitrability
EU Competition Law
European Court of Justice/CJEU
Interim measure
Lex arbitri
Preliminary Ruling
Setting Aside
Mag. Corinna Potocnik is an Associate with Willheim Müller Attorneys at Law in Vienna and specializes in EU competition law and international arbitration. Before joining Willheim Müller in 2012, she worked at an Austrian boutique law firm specialized in international arbitration as well as at the Permanent Mission of Austria to the United Nations in Vienna. Corinna graduated from the University of Vienna with a focus on International Law.
e-mail: c.potocnik@wmlaw.at
Harald Sippel works for the Viennese law firm Willheim Müller where he acts as counsel and arbitrator in international ad hoc and institutional arbitration proceedings. Harald obtained a Master in Law and PhD in law (summa cum laude) degree from the University Linz (Austria), as well as an MBA degree from Seoul National University (Korea) and a postgraduate diploma in arbitration from Queen Mary, University of London (U.K.). Harald is a Fellow of the Chartered Institute of Arbitrators.
e-mail: h.sippel@wmlaw.at
Dr. Johannes Willheim, M.B.L.-HSG, LL.M. (Chicago) is a founding partner of Willheim Müller Attorneys at Law. Johannes was trained internationally in corporate and commercial law, with a strong focus on EU and US antitrust law and economics. He has served as party representative as well as arbitrator in international arbitration proceedings. Johannes has acted as party representative in numerous arbitrations whose outcome depended on EU competition law. Johannes regularly teaches international dispute resolution courses and seminars.
e-mail: j.willheim@wmlaw.at
